Thursday 26 April 2012 06.36 EDT
First published on Thursday 26 April 2012 06.36 EDT

There is a must-read article in this week's New York Times Sunday magazine about over-zealous Alabama prosecutors bringing charges against drug-addicted mothers. It's a troubling and complex issue. Obviously no one thinks that using drugs during pregnancy is a good idea, and it is a tragedy when a baby is stillborn, or born with drugs in its system. But many of these cases involve stillbirths, which cannot be clearly tied to drug use . All the prosecutors know is that the pregnant woman used drugs (even once) and the baby was stillborn, and so they assume (and argue, with little to no evidence) causation. And because most folks don't understand just how complicated pregnancy actually is – and after the 80s "crack baby" hysteria, don't understand that drug use during pregnancy doesn't usually cause long-term problems in the child – people hear "drug-using mom" and "stillborn baby" and it's easy to conclude that A led to B, even though that's not how it works.

Complex medical issues aside, there are few upsides to prosecuting pregnant women who use drugs, other than simply punishing them for being bad mommies. Drug addiction is a disease; it's not something that most people can walk away from with no help or intervention. And if a pregnant woman knows she'll be prosecuted for being a drug addict, she's sure as hell not going to seek help knowing that conversations with her doctor or her friends or social services might be used to take her kids away and put her in jail.

Women who are prosecuted under these laws tend to be poor, rural and often of colour. (According to one study, black women and white women use drugs at about the same rates, but black women are 10 times as likely to be reported to authorities.) Many drug treatment centres won't accept pregnant women. The women who are prosecuted for drug addiction while pregnant tend to be women who are slipping through the cracks in lots of other ways, and often aren't getting adequate prenatal care and nutrition during their pregnancies. Other factors, like higher rates of homelessness, also come into play. So not only are poor pregnancy outcomes complicated by lots of other issues from which it's impossible to separate out the drug use itself, but drug-addicted pregnant women are often at risk in other ways, and the knowledge that they will be prosecuted for being addicts makes them less likely to seek out things like prenatal care and nutritional help, which have far greater impacts on a developing foetus.

And then there are the legal issues. Drug addiction is a status and not a crime, and you cannot prosecute someone for simply being an addict. Pregnancy is also a status. These prosecutions place drug-addicted pregnant women in a different class than other people and treat them unequally, creating a new (and I would argue unconstitutional) status crime. It's also not surprising that these prosecutions target certain kinds of women. Let me quote Dorothy Roberts:

"The method of whipping pregnant slaves that was used throughout the South vividly illustrates the slaveowners' dual interest in Black women as both workers and childbearers. Slaveowners forced women to lie face down in a depression in the ground while they were whipped. This procedure allowed the masters to protect the fetus while abusing the mother. It serves as a powerful metaphor for the evils of a fetal protection policy that denies the humanity of the mother. It is also a forceful symbol of the convergent oppressions inflicted on slave women: they were subjugated at once both as Blacks and as females."

This is about punishing mothers and destroying families under the guise of "helping" children. But who is helped here? And how?

It's worth pointing out that anti-choice advocates admit this is a back-door way to establish foetal personhood. Their personhood amendments have universally failed, and so they're looking for other ways to enshrine into the law that a foetus is a "person" with all of the same rights as you or me or a born child. They understand that this is how the American legal system works – cases build on other cases, and legal precedent stating that a foetus is entitled to personhood rights is pro-life gold. So they focus on the most vulnerable, least sympathetic pregnant women first and establish the rights of foetuses there. They can't go right for the prescription-drug-using upper-middle-class white women, in part because those women are considered at least marginally important in society, and in part because the people doing the prosecuting come from the same backgrounds and social classes as upper-middle-class white women and are therefore less likely to easily tag those women as criminals and unfit mothers. So women of colour, poor women and rural women are the targets, and they're having a wide pro-life strategy built on their backs.

And what's next? Slippery slope arguments can get a little silly, but given the tenuous connection between drug use and poor infant health outcomes and the continued insistence on prosecuting women who used drugs while pregnant, is it really so ridiculous to think that over-zealous prosecutors might go after women for other "bad behaviours" while pregnant? Women who carry pregnancies to term are pregnant for almost a year, during which they might do things like have a drink, smoke a cigarette, go skiing, eat a runny egg, have a piece of tuna, eat sushi, drive without a seatbelt, drink a lot of coffee, use SSRIs, take medication to counter their epilepsy, live in a home where other people smoke, or do a whole variety of things that are to different degrees "unsafe" for the baby, depending on who you're asking. And not all of this is speculative – we've already seen legislators try to make it illegal for pregnant women to smoke.

We all want pregnant women and their future children to be healthy. But criminalising behaviour doesn't achieve that goal. And putting pregnant women in a separate class of people with fewer rights – that is, criminalising a certain behaviour when done by a pregnant person, which would not be a crime if done by a non-pregnant person – is unconstitutional and (should be) legally impermissible.